You ask whether certain information is subject to required public disclosure under chapter
552 of the Government Code. Your request was assigned ID# 130886.

The El Paso Independent School District ("EPISD") received a request for copies of all
proposals submitted in response to EPISD's Request for Proposal (the "RFP") for certain
third-party administrator and network services pursuant to its Employee Group Medical Plan.
You claim that some information in the proposals is excepted from disclosure under sections
552.104 and 552.110 of the Government Code. We have considered the exceptions you
claim and reviewed the submitted information.

Initially, you state that all information submitted in the proposals must be withheld pursuant
to a promise of confidentiality on page 8 of the RFP. Information, however, is not
confidential under the Public Information Act (the "Act") simply because the party
submitting the information anticipates or requests that it be kept confidential. Industrial
Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976), cert. denied 430
U.S. 931 (1977), see Open Records Decision Nos. 479 (1987) (information is not
confidential under Public Information Act simply because party submitting it anticipates or
requests that it be kept confidential), 203 (1978) (mere expectation of confidentiality by
individual supplying information does not properly invoke section 552.110). In other words,
a governmental body cannot, through a contract, overrule or repeal provisions of the Act.
Attorney General Opinion JM-672 (1987). Thus, the information at issue is subject to
disclosure under the Act.

You argue that the information EPISD wishes to withhold is protected from disclosure under
section 552.104. Section 552.104 of the Government Code excepts from required public
disclosure "information which, if released, would give advantage to competitors or bidders."
The purpose of section 552.104 is to protect the interests of a governmental body by
preventing one competitor or bidder from gaining an unfair advantage over others in the
context of a pending competitive bidding process. Open Records Decision No. 541 (1990).
Section 552.104 does not, however, protect the interests of private parties that submit
information to a governmental body. Id. at 8-9. You state, however, that the contract was
awarded and confirmed by the EPISD Board of Trustees on October 12, 1999. Section
552.104 of the Government Code is temporal in nature and does not apply once the contract
has been awarded. Open Records Decision No. 541 at 5 (1990). Therefore, you may not
withhold information under section 552.104.

Since the property and privacy rights of third parties may be implicated by the release of the
requested information, you notified those companies whose information is responsive to the
request. See Gov't Code § 552.305 (permitting interested third party to submit to attorney
general reasons why requested information should not be released); Open Records Decision
No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits
governmental body to rely on interested third party to raise and explain applicability of
exception in Public Information Act in certain circumstances). CCN-Managed Care, Inc.
("CNN") and Assured Benefits Administrators responded to the notification.

The remaining six companies whose information is responsive to this request did not submit
objections to the release of their respective information; therefore, we have no basis to
conclude that these companies' information is excepted from disclosure. See Gov't Code
§ 552.110(b) (to prevent disclosure of commercial or financial information, party must show
by specific factual or evidentiary material, not conclusory or generalized allegations, that it
actually faces competition and that substantial competitive injury would likely result from
disclosure); Open Records Decision Nos. 552 at 5 (1990) (party must establish prima facie
case that information is trade secret), 542 at 3 (1990). The proposal information for Access
Administrators, Inc., Blue Cross Blue Shield of Texas, Texas Association of School Boards
Risk Management Fund, BDI Benefits Design, Inc., UniCare, and Prudential Health Care
must, therefore, be released to the requestor.

Section 552.110 protects the property interests of private parties by excepting from
disclosure two types of information: (1) trade secrets, and (2) commercial or financial
information for which it is demonstrated based on specific factual evidence that disclosure
would cause substantial competitive harm to the person from whom the information was
obtained.

The Texas Supreme Court has adopted the definition of "trade secret" from the Restatement
of Torts, section 757, which holds a "trade secret" to be:

any formula, pattern, device or compilation of information which is
used in one's business, and which gives him an opportunity to obtain
an advantage over competitors who do not know or use it. It may be
a formula for a chemical compound, a process of manufacturing,
treating or preserving materials, a pattern for a machine or other
device, or a list of customers. It differs from other secret information
in a business . . . in that it is not simply information as to a single or
ephemeral event in the conduct of the business. . . . A trade secret is
a process or device for continuous use in the operation of the
business. . . . [It may] relate to the sale of goods or to other
operations in the business, such as a code for determining discounts,
rebates or other concessions in a price list or catalogue, or a list of
specialized customers, or a method of bookkeeping or other office
management. [Emphasis added.]

Restatement of Torts § 757 cmt. b (1939); see Hyde Corp. v. Huffines, 314 S.W.2d 763, 776
(Tex.), cert. denied, 358 U.S. 898 (1958). If a governmental body takes no position with
regard to the application of the "trade secrets" branch of section 552.110 to requested
information, we accept a private person's claim for exception as valid under that branch if
that person establishes a prima facie case for exception and no one submits an argument that
rebuts the claim as a matter of law. Open Records Decision No. 552 at 5 (1990).(1)

Section 552.110(b) excepts from required public disclosure "[c]ommercial or financial
information for which it is demonstrated based on specific factual evidence that disclosure
would cause substantial competitive harm to the person from whom the information was
obtained." An entity will not meet its burden under section 552.110(b) by a mere conclusory
assertion of a possibility of commercial harm. Seegenerally National Parks & Conservation
Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). The governmental body or interested
third party raising section 552.110(b) must provide a specific factual or evidentiary showing
that substantial competitive injury would likely result from disclosure of the requested
information.

Assured Benefits Administrators submitted a letter to protest the release of information
pertaining to its response. However, we conclude that the company has made only
unsubstantiated, conclusory statements regarding the confidentiality of its proposal
information. See also National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C.
Cir. 1974). Consequently, it has not established that its proposal information is either trade
secret information or commercial or financial information excepted from disclosure under
section 552.110. See Open Records Decision No. 552 at 5 (1990) (party must establish
prima facie case that information is trade secret), Open Records Decision No. 542 at 3
(1990); (to prevent disclosure of commercial or financial information, party must show by
specific factual or evidentiary material, not conclusory or generalized allegations, that it
actually faces competition and that substantial competitive injury would likely result from
disclosure) Open Records Decision No. 552 at 5 (1990). EPISD must, therefore, release
Assured Benefits Administrator's proposal information in its entirety to the requestor.

CNN submitted a brief in which it claims that the pages marked A1 through A-27 of its
proposal are protected from disclosure under sections 552.101 and 552.110 as trade secret
information. After a review of CNN's arguments, we conclude that the company has not
established a prima facie case for protection from disclosure of the information at issue
under the "trade secrets" branch of section 552.110. Thus, EPISD must release the pages
marked A1 through A-27 in addition to the remaining information of CNN's proposal.

This letter ruling is limited to the particular records at issue in this request and limited to the
facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and of the requestor. For example, governmental bodies are prohibited
from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the
governmental body wants to challenge this ruling, the governmental body must appeal by
filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full
benefit of such an appeal, the governmental body must file suit within 10 calendar days.Id.
§ 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the
governmental body does not comply with it, then both the requestor and the attorney general
have the right to file suit against the governmental body to enforce this ruling. Id.
§ 552.321(a).

If this ruling requires the governmental body to release all or part of the requested
information, the governmental body is responsible for taking the next step. Based on the
statute, the attorney general expects that, within 10 calendar days of this ruling, the
governmental body will do one of the following three things: 1) release the public records;
2) notify the requestor of the exact day, time, and place that copies of the records will be
provided or that the records can be inspected; or 3) notify the requestor of the governmental
body's intent to challenge this letter ruling in court. If the governmental body fails to do one
of these three things within 10 calendar days of this ruling, then the requestor should report
that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839.
The requestor may also file a complaint with the district or county attorney. Id.
§ 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the
requested information, the requestor can appeal that decision by suing the governmental
body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,
411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments
about this ruling, they may contact our office. Although there is no statutory deadline for
contacting us, the attorney general prefers to receive any comments within 10 calendar days
of the date of this ruling.

1. The six factors that the Restatement gives as indicia of whether information constitutes a trade secret are: "(1) the extent to which the information is known outside of [the company]; (2) the extent to which it is known by employees and other involved in [the company's] business; (3) the extent of measures taken by [the company] to guard the secrecy of the information; (4) the value of the information to [the company] and [its] competitors; (5) the amount of effort or money expended by [the company] in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others." Restatement of Torts, § 757 cmt. b (1939); see also Open Records Decision Nos. 319 at 2 (1982), 306 at 2 (1982), 255 at 2 (1980).